FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gillespe & Ngan [2023] FedCFamC1A 27
Appeal from: Gillespe & Ngan [2022] FedCFamC2F 1303 Appeal number: NAA 241 of 2022 File number: MLC 10870 of 2021 Judgment of: AUSTIN J Date of judgment: 20 March 2023 Catchwords: FAMILY LAW – APPEAL – De facto relationship – Where the primary judge made orders declaring that a de facto relationship did not exist between the parties – Alleged errors of fact – Where the appellant’s submission that he had an equitable interest in a parcel of real property was not one made to the primary judge and cannot now be made in the appeal – Where the findings of the primary judge that the parties did not intermingle their finances is consistent with the appellant’s evidence – Whether the decision is plainly wrong – Where findings of de facto relationships are factual not discretionary – Where the finding was not foreclosed by the evidence – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 44, 90RD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Allen v Snyder (1977) 2 NSWLR 685
Black Uhlans Inc v NSW Crime Commission [2002] NSWSC 1060
Bosanac v Commissioner of Taxation (2022) 405 ALR 424; [2022] HCA 34
Calverly v Green (1984) 155 CLR 242; [1984] HCA 81
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
Russell v Scott (1936) 55 CLR 440; [1936] HCA 34
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 33 Date of hearing: 20 March 2023 Place: Newcastle (via video link) Counsel for the Appellant: Mr Howe Solicitor for the Appellant: Hartleys Lawyers Counsel for the First Respondent: Dr Matta Solicitor for the First Respondent: Pearce Webster Dugdales The Second Respondent: Did not participate in the appeal ORDERS
NAA 241 of 2022
MLC 10870 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GILLESPE
Appellant
AND: MS NGAN
First Respondent
MS A NGAN
Second Respondent
order made by:
AUSTIN J
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the first respondent’s costs of and incidental to the appeal in the fixed sum of $7,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r…
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- AGLC
- Gillespe & Ngan [2023] FedCFamC1A 27
- Case
- [2023] FedCFamC1A 27
- Decision Date
CaseChat Overview and Summary
In the matter of Gillespe & Ngan, the appellant, who had been in a relationship with the first respondent for approximately seven years, initiated proceedings against her seeking relief under the Family Law Act 1975 (Cth). The appellant claimed that following the termination of their de facto relationship in May 2021, declaratory and property settlement relief was warranted. The first respondent denied the existence of a de facto relationship. The second respondent, the first respondent's sister, was joined as a party to the proceedings despite no claims being made against her, and she took no part in the appeal.
The primary legal issue before the court was whether a de facto relationship had existed between the appellant and the first respondent. If such a relationship was established, the court also needed to determine its commencement and termination dates. These facts were crucial to decide whether the court had jurisdiction to entertain the dispute and if an allied application under section 44(5) of the Act was necessary for leave to bring the property settlement application out of time.
The court concluded that the appellant had not proven the existence of a de facto relationship on the balance of probabilities, despite acknowledging that the appellant was a reliable witness. The primary judge found that the relationship did not involve the merger of the parties’ lives as required by section 4AA of the Act. Consequently, the court lacked jurisdiction to entertain the ancillary claim for property settlement relief, which was dismissed. The court also noted that the question of leave to make an application under section 90SM did not arise since the appellant had failed to satisfy one of the pre-conditions for a property adjustment order under Part VIIIAB of the Act.
The appeal was dismissed, and the decision of the primary judge was upheld. The court's ruling meant that the appellant was not entitled to the declaratory and property settlement relief sought in the proceedings.
The primary legal issue before the court was whether a de facto relationship had existed between the appellant and the first respondent. If such a relationship was established, the court also needed to determine its commencement and termination dates. These facts were crucial to decide whether the court had jurisdiction to entertain the dispute and if an allied application under section 44(5) of the Act was necessary for leave to bring the property settlement application out of time.
The court concluded that the appellant had not proven the existence of a de facto relationship on the balance of probabilities, despite acknowledging that the appellant was a reliable witness. The primary judge found that the relationship did not involve the merger of the parties’ lives as required by section 4AA of the Act. Consequently, the court lacked jurisdiction to entertain the ancillary claim for property settlement relief, which was dismissed. The court also noted that the question of leave to make an application under section 90SM did not arise since the appellant had failed to satisfy one of the pre-conditions for a property adjustment order under Part VIIIAB of the Act.
The appeal was dismissed, and the decision of the primary judge was upheld. The court's ruling meant that the appellant was not entitled to the declaratory and property settlement relief sought in the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
The appeal should be dismissed for the following reasons.Background In October 2021, the appellant commenced proceedings against the first respondent seeking declaratory and property settlement relief under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), which he alleged was warranted following the termination of their de facto relationship of about seven years duration in May 2021. The first respondent denied there had ever been a de facto relationship between them. The second respondent is the first respondent’s sister. It remains quite unclear why she was joined as a party to the proceedings because the appellant did not make any claim for relief against her. She was also pointlessly joined by the appellant to the appeal, but she elected to take no part in it. The proceedings were listed for hearing before the primary judge in August 2022, but only to determine threshold jurisdictional issues joined by the parties. The live issues were, first, whether there had been a de facto relationship between the appellant and the first respondent and if so, secondly, when it began, and thirdly, when it ended. The duration and timing of the termination of the de facto relationship, if it ever existed, would establish whether jurisdiction existed to entertain the dispute and whether any allied application would need to be made under s 44(5) of the Act for leave to bring the property settlement application out of time. The primary judge was satisfied the appellant was a reliable witness (at [26]), but his personal impression about the nature of the parties’ relationship was not dispositive of its objective characterisation. Correctly, the primary judge recorded how the appellant bore the burden of proving the existence and duration of the de facto relationship on the balance of probabilities (at [72]). The primary judge adverted to the criteria prescribed by s 4AA of the Act and concluded no de facto relationship had ever existed between the parties, which finding was expressed this way:111.Having considered all of the circumstances and having regard to the quality of the evidence before the Court, I am not satisfied that the parties at any time were in a de facto relationship for the purpose of s 4AA of the Act.112.While it is undoubtedly the case that the parties had genuine affection for one another and that the [appellant] provided substantial financial support to the [appellant] (sic) at different times throughout their relationship, the composite picture that emerged was not one that involved the merger of the parties’ lives. The ensuing declaration under s 90RD(1) of the Act – that no de facto relationship had existed between the appellant and first respondent - meant the Court was deprived of jurisdiction to entertain the ancillary claim for property settlement relief, in which case it had to be dismissed. Correctly, the primary judge said this:114.Having regard to my finding about the character of the parties’ relationship, it is incumbent on me to dismiss the [appellant’s] application. The question of leave to make an application under s 90SM does not arise in circumstances where the [appellant] is unable to satisfy one of the pre-conditions to the making of a property adjustment order under Part VIIIAB of the Act.The Appeal
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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